297 F.

3d 1172

Richard A. BROUGH, Jr., Plaintiff-Counter DefendantAppellee,

v.
IMPERIAL STERLING LTD., a Delaware corporation,
Defendant-Counter Claimant-Counter Defendant-Appellant,
Harriet Golding, a.k.a. Harriet Golding Martin, CounterDefendant.
No. 01-14195.
No. 01-14222.
No. 01-15049.

United States Court of Appeals, Eleventh Circuit.

July 16, 2002.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Daniel S. Rosenbaum, Becker & Poliakoff, West Palm Beach,
FL, for Imperial Sterling Ltd in Nos. 01-14195, 01-14222 & 01-15049.
Michael R. Riemenschneider, O'Brien, Riemenschneider & Kancilia,
Melbourne, FL, for Richard A. Brough, Jr. in Nos. 01-14195 & 01-14222.
Michael R. Riemenschneider, O'Brien, Riemenschneider & Kancilia,
Melbourne, FL, Lorin Louis Mrachek, Page, Mrachek, Fizgerald & Rose,
P.A., West Palm Beach, FL, Kelly Lee Reagan, West Palm Beach, FL, for
Richard A. Brough, Jr. in No. 01-15049.
Appeal from the United States District Court for the Middle District of
Florida.
Before MARCUS and KRAVITCH, Circuit Judges, and VINSON * , Chief
District Judge.
KRAVITCH, Circuit Judge:

This appeal presents the question of whether, under Florida law, it is too
speculative for a jury to award damages for future unearned commissions to an
employee whose contract has been repudiated by his employer. We hold that,
where it is unclear whether the employee would have received the commissions
under the contract, it is too speculative for a jury to award compensation for the
lost commissions. We therefore reverse the award of damages for future
commissions. We affirm the award of damages involving other issues.

I. BACKGROUND
2

Imperial Sterling Limited ("ISL") is a real estate management and investment

company that owns a number of properties in Brevard County, Florida. ISL
derives significant revenue from the leasing and management of these
properties. In 1996, Richard Brough was interviewed for the position of ISL
property manager for the company's Florida operations. The interviewing was
conducted primarily by Harriet Golding, the president of ISL at the time, but
Brough also flew to New York to meet with Golding's son Jerrold Levy, the
vice-president of ISL and majority shareholder of the company. Brough was
given the position. A handwritten contract, dated August 27, 1996 and signed
by Golding, provided that Brough was entitled to an annual salary of $60,000
that would be raised to $65,000 after six months, as well as medical insurance
and a car allowance. The contract also specified that Brough would "receive
comissions [sic] on sales of land or buildings but no comissions [sic] on leases."
The contract indicated that Brough's job was to "manage and lease all
Melbourne properties and work on the sale of same." A second contract from
Golding, dated October 29, 1997, extended the terms of Brough's employment
agreement for five years starting November 1, 1997. The second letter
specified that "there will be 10% commissions on all sales, swaps or purchases
of Florida Properties."

In 1999, Levy and Golding had a dispute that led to Levy taking over the
presidency of the company and removing Golding from office.1 Shortly
thereafter, Levy indicated to Brough that he was interested in selling the Florida
properties and that Brough should find a broker to help with the property sales.
In a phone conversation approximately a week-and-a-half later, Levy and
Brough discussed Brough's 10% commission on the sale of any of the
properties. Levy and Brough give differing accounts of the phone conversation,
but Levy subsequently claimed that it was the first time he had ever heard
about the commission contract. Levy asked to see copies of the contracts, and
Brough forwarded copies to him approximately one month later. Five months
after receiving copies of the contracts, Levy sent a letter to Brough denying that
ISL was bound by the two contracts. As a result, Brough left his job and sued

ISL for breach of contract.

4

ISL brought counterclaims against Brough and Golding for fraud and
conspiracy to commit fraud. Both the counterclaims and ISL's defense of the
breach of contract relied primarily on the theory that there never was a genuine
commission agreement and that the handwritten contracts were fabrications
made by Brough and Golding after Golding's dispute with Levy. The claims
went to a jury trial that began on June 11, 2001, more than a year before the
second contract would have expired. At the close of ISL's evidence, the district
court granted Brough's and Golding's motions for judgment as a matter of law
on the fraud counts, but denied ISL's motion for judgment as a matter of law on
the breach of contract claim. The jury found in favor of Brough on the breach
of contract claim, awarding him total damages of $3,199,560: $406,000 for lost
commissions on the one property that had been sold before the trial, $2,585,000
in future commissions on other Florida properties that had not yet been sold,
and $208,560 in lost salary, benefits, and vehicle allowance.2

II. DISCUSSION
5

A. The denial of ISL's motion for judgment as a matter of law on the future
commission damages awarded on Brough's breach of contract claim

A district court's denial of a motion for judgment as a matter of law is reviewed

by this court de novo. Maytronics, Ltd. v. Aqua Vac. Sys., Inc., 277 F.3d 1317,
1320 (11th Cir.2002). This court, like the district court, must consider all the
evidence, and the inferences drawn therefrom, in the light most favorable to the
nonmoving party. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454
(11th Cir.1998). The motion can be granted only if there was "no legally
sufficient basis for a reasonable jury to find in favor" of the nonmoving party.
Carter v. DecisionOne Corp., 122 F.3d 997, 1003 (11th Cir.1997).

ISL argues that the issue of unearned future commissions should not have been
submitted to the jury because it was too speculative. Although lost profits are
an appropriate measure for damages from breach of contract, the loss "must be
proven with a reasonable degree of certainty before it is recoverable. The mind
of a prudent impartial person should be satisfied that the damages are not the
result of speculation or conjecture." Johnson Enters. of Jacksonville, Inc., v.
FPL Group, Inc., 162 F.3d 1290, 1325 (11th Cir.1998) (quoting Shadow Lakes,
Inc. v. Cudlipp Constr. & Dev. Co., 658 So.2d 116, 117 (Fla.2d Dist. Ct.App.
1995)). In this case, the jury's award of $2,585,000 for "future commissions on
other Florida properties" was based on speculation that ISL would sell its
property, and therefore we reverse the award of those damages.

The cases involving Florida law that are most analogous to this one are Himes
v. Brown & Co. Sec. Corp., 518 So.2d 937 (Fla.3d Dist. Ct.App. 1987) and
Kane v. Shearson Lehman Hutton, Inc., 916 F.2d 643 (11th Cir.1990). 3 In
Himes, an investor argued that he should be awarded lost profits against a
securities firm, because the firm's failure to properly execute his purchase
orders prevented him from buying and selling securities at the optimal time.
Himes, 518 So.2d at 938. The Florida Court of Appeals held that there was no
evidence that the investor "would have completed the time-sensitive
transactions at precisely the correct time" and therefore any damages were
speculative and non-recoverable. Id. In Kane, an investor similarly claimed that
he failed to receive profits because his broker failed to inform him about
negative information related to a company he had invested in. Kane, 916 F.2d
at 647. This court, citing Himes, held that the investor could not recover his
anticipated profits based on the speculation that "he would have sold the
securities at the optimal time." Id. Both Himes and Kane stand for the
proposition that damages may not be awarded for lost profits when those
profits are dependent on a party taking an action that it is unclear he would
have taken. In this case, it was unclear at the time of the trial whether ISL
would have sold its Florida property before November 1, 2002, when Brough's
contract expired.

Brough introduced substantial evidence at trial intended to prove that the

properties would have been sold before November 1, 2002. The evidence
included (1) minutes from a board of directors meeting in which Levy indicated
that ISL should retain real estate experts to assist with the sale of all the Florida
properties; (2) testimony that Brough was instructed to prepare and market the
properties for sale before he left the company; (3) evidence that an outside real
estate firm was hired to market and sell the properties; (4) evidence that, at the
time of trial, all of the Florida properties were listed for sale and some offers
had been received; and (5) expert testimony that the properties were likely to
sell within a year or less from the date of the breach, given the market area and
prices. While this evidence is probative of the likelihood that the properties
would sell if ISL decided to proceed with the property sales, it rests on the
assumption that ISL would continue to act in that manner. Under the contract,
ISL had no obligation ever to make a sale of property and the company could
have decided at any time to change its business strategy and discontinue efforts
to sell the property. The jury could only award Brough damages by speculating
that ISL would leave the properties on the market and accept offers from
buyers.

10

Under Florida law, once ISL repudiated the contract, Brough had an immediate
cause of action against it. See Hosp. Mortgage Group v. First Prudential Dev.

Corp., 411 So.2d 181, 182 (Fla.1982). In this particular case, however, it would
have been advisable for Brough to have waited until the term of his contract had
ended before bringing this action because there was absolutely no means by
which a jury could determine with reasonable certainty what Brough's
commissions would have been had the contract not been repudiated. Had ISL
not repudiated the contract, Brough might have worked diligently for the
entirety of the contract and never received a single commission, or he could
have received a great windfall if ISL sold all of its Florida properties.4
11

Because we conclude that the award of damages for unearned future

commissions was the result of improper speculation, we hold that the district
court erred in denying ISL's motion for judgment as a matter of law with
respect to this issue and accordingly reverse the jury's award of $2,585,000 for
future commissions on Florida properties.

12

B. The denial of ISL's motions for new trial and judgment as a matter of law
based upon alleged trial errors

13

ISL also argues that its motions for new trial and for judgment as a matter of
law should have been granted due to a number of trial errors. We will examine
each perceived error individually.
1. Net Worth

14

The general rule is that, during trial, "no reference should be made to the
wealth or poverty of a party, nor should the financial status of one party be
contrasted with the other's." Batlemento v. Dove Fountain, Inc., 593 So.2d 234,
241 (Fla. 5th Dist.Ct.App.1991). The erroneous admission of such evidence can
constitute reversible error. See, e.g., Baggett v. Davis, 124 Fla. 701, 169 So. 372
(1936); Deese v. White Belt Dairy Farms, Inc., 160 So.2d 543 (Fla.2d Dist.
Ct.App. 1964).

15

In this case, counsel for Brough made several references during the trial to the
wealth of ISL and Levy. ISL argues that the admission of these references
constitutes reversible error. Some of the statements ISL now contends were
inadmissible were objected to at trial; others were not. We will consider each
set of statements in turn.

16

Where a proper objection was raised at trial, this court reviews a district court's
evidentiary rulings for abuse of discretion, and evidentiary rulings are
overturned only when the moving party establishes that the ruling resulted in a

substantial prejudicial effect. Piamba Cortes v. Am. Airlines, Inc. 177 F.3d
1272, 1305 (11th Cir.1999). Several of the challenged evidentiary admissions
involved evidence that was probative to one or more issues in the case, and
therefore we find no error in its admission. This includes evidence regarding
the value of the Florida properties and their list prices, which was probative of
the amount of damages, and evidence regarding the value and profitability of
ISL's Florida subsidiaries, which was probative of the likelihood that the large
commission contract was authentic. The remainder of the objected-to
evidentiary admissions was not probative of any material issue and should have
been excluded. This includes testimony regarding ISL's value and the value of
Levy's personal assets. Any error resulting from these admissions was
harmless, however, because there was a considerable amount of admissible
evidence at trial allowing the jury to determine that both ISL and Levy were
wealthy parties. Batlemento, 593 So.2d at 242 n. 16 (noting that error in
admitting wealth evidence may be harmless "where the record otherwise
contained enough properly admitted evidence from which the jury could figure
out the relative economic status of the parties").
17

For evidence and argument to which no objection has been raised, this court
reviews for plain error. See United States v. Massey, 89 F.3d 1433, 1441 (11th
Cir.1996); Oxford Furniture Cos. v. Drexel Heritage Furnishings, Inc., 984
F.2d 1118, 1128-29 (11th Cir.1993). For there to be plain error, there must (1)
be error, (2) that is plain, (3) that affects the substantial rights of the party, and
(4) that seriously affects the fairness, integrity, or public reputation of a judicial
proceeding. United States v. Humphrey, 164 F.3d 585, 588 n. 3 (11th
Cir.1999).

18

In this case, ISL failed to object when Brough's counsel elicited testimony
regarding the value of Levy's trust account. ISL also failed to object when
Brough's counsel made a number of inappropriate statements during closing
argument explicitly contrasting Brough's financial status with that of ISL and
Levy. Brough's counsel stated to the jury that Levy has a "one hundred million
dollar company [while] Mr. Brough is simply an employee trying to make a
living down in Florida." Brough's counsel further characterized the dispute as
one between "an individual who has a wife who is working, who has a baby at
home, a new home, who lives based upon the income that's generated from
those particular things, particular items, this job, his wife's job, versus a one
hundred million dollar company." He also told the jury that ISL breached the
contract because it was "willing to take the risk of dealing with the potential
lawsuit from an individual whose living [was] based on his job, versus a
corporation that has at least three lawyers in place, at least three lawyers in
place at one time, and has one hundred million dollars in assets to go forward

with that lawsuit." Golding's attorney also made several references to ISL's
wealth during closing argument. These statements were prejudicial and should
have been excluded. Nonetheless, "a finding of plain error `is seldom justified
in reviewing argument of counsel in a civil case.'" Oxford Furniture, 984 F.2d
at 1128 (quoting Woods v. Burlington N. R.R. Co., 768 F.2d 1287, 1292 (11th
Cir. 1985) (per curiam), rev'd on other grounds, 480 U.S. 1, 107 S.Ct. 967, 94
L.Ed.2d 1 (1987)). We find that the arguments of counsel, although improper,
do not rise to the level of plain error because they did not seriously affect the
fairness, integrity, or public reputation of the proceeding.
2. Present Value 5
19

Florida law requires a jury to reduce an award of future profits to its present
value. W.R. Grace & Co.-Conn. v. Pyke, 661 So.2d 1301, 1302 (Fla.3d Dist.Ct.
App.1995). "Present value of future damages in most cases ... is determined by
expert testimony that provides information concerning a total amount of
damages that will be incurred in the future and then provides an appropriate
interest rate for discounting those damages to present value." Mission Square,
Inc. v. O'Malley's, Inc., 783 So.2d 1151, 1152 (Fla. 1st Dist.Ct. App.2001).
There is no requirement, however, that a party introduce expert testimony to aid
a jury in its determination of present value. Seaboard Coast Line R.R. v. Burdi,
427 So.2d 1048, 1050 (Fla.3d Dist.Ct.App.1983) ("Jurors, as persons of
common experience, know generally that one needs to invest less than a dollar
today to insure the return of a dollar in the future, so that expert testimony,
while helpful, may hardly be considered indispensable to a consideration of the
question."). Here, the jury was properly instructed that "[d]amages for breach
of contract may include losses or harm that will be suffered in the future as a
result of the breach. However, such damages must be limited to the present
cash value of the future loss." Therefore, we find that the district court did not
commit error by allowing the jury to calculate damages without the testimony
of an expert on present value.

20

There also was no error resulting from the fact that the jury arrived at a
damages value equal to the amount of future damages that Brough's expert
calculated would be lost in salary, benefits, and vehicle allowance. See Waxman
v. Truman, 792 So.2d 657, 659 (Fla. 4th Dist. Ct.App.2001) ("[T]he fact that a
present value award for future economic damages is the same as the future
value sum does not mean that the jury failed to follow the instructions to reduce
the future sum award to present value."); Burgess v. Mid-Fla. Serv., 609 So.2d
637, 638 (Fla. 4th Dist. Ct.App. 1992) ("a jury's failure to arrive at a present
value calculation that is smaller than the future economic damages awarded
does not necessarily prove a failure to follow the court's instructions").6 We

therefore find no error relating to the present value determination.

21

3. District court's statement about Golding's motive

22

Comments by the trial judge will cause reversal only where the comments
"`excite a prejudice which would preclude a fair and dispassionate
consideration of the evidence.'" Wilson v. Bicycle S., Inc., 915 F.2d 1503, 1508
(11th Cir. 1990) (quoting Quercia v. United States, 289 U.S. 466, 472, 53 S.Ct.
698, 77 L.Ed. 1321 (1932)). In assessing whether prejudice exists that has
affected the parties' substantial rights, a court must consider the record as a
whole and not merely isolated remarks. Id. at 1509. ISL argues that the district
court prejudiced its case when it remarked that Golding's "motive in this suit
would be to defend herself." Taken in context, however, the comment appears
to be an innocuous misunderstanding.

23

During the cross-examination of Golding, Golding's lawyer objected several

times to questions about her "lavish lifestyle." The district court asked ISL's
lawyer to explain the relevance of the "lavish lifestyle" testimony, and counsel
replied that the testimony went to "her motive in this suit." The court then made
the confusing, but accurate, statement that:

24

She's a defendant in this suit. She didn't file a claim in this suit. Motive in this
suit would be to defend herself. I think you have exposed enough of this. You
can argue when the jury is out, if you wish.

25

We do not perceive that the district court's statement precluded the jury from a
fair and dispassionate consideration of the evidence. ISL was not even
prejudiced by the fact that the district court cut short its line of questioning
because ISL subsequently cross-examined Golding at length about her "lavish
lifestyle." We therefore perceive no error resulting from the district court's
comment.
4. The testimony of Bert Freehof

26

ISL argues that the district court erred by allowing Bert Freehof, the broker
handling ISL's property sales, to testify after ISL had completed its case.
Freehof testified primarily as to the values of ISL's properties, the listing prices
of the properties, and the number and amounts of offers received on the
properties. A trial court has broad discretion to exercise control over the order
of presentation at trial. Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct.
1330, 47 L.Ed.2d 592 (1976).7 ISL was offered the opportunity to put on

additional evidence after Freehof's testimony, but it declined. We find no error

in the district court's decision to allow Freehof to testify.
27

5. Closing argument statement concerning expert testimony

28

In a pretrial order, the district court ruled that "the fact that ISL retained a
[handwriting expert] is unduly prejudicial and the revelation of such
information can and should be avoided." ISL contends that the following
statement by Brough's attorney during closing argument violated that order:

29

So there's no testimony on their side of the case, you know, they're saying it's
fabricated, that these are phony documents, but they have no evidence of when
these documents were actually prepared. There has been no expert testimony
presented to you, in this case, about when these documents were prepared.
There has been no forensic document examiner that's come before you.

30

This statement did not violate the pretrial order because it only stated generally
that ISL did not call an expert, and not that ISL had failed to call an expert that
it previously had consulted. We find no error in the comment.

31

C. The grant of Brough's and Golding's motions for judgment as a matter of

law on the fraud counterclaims

32

ISL argues that it was error for the district court to grant Brough's and
Golding's motions for judgment as a matter of law on the fraud counterclaims.8
To prove a prima facie case for fraud, ISL had to produce evidence that: (1)
Brough and Golding made a false statement or omission of a material fact; (2)
that was intended to induce ISL to act; (3) that was relied upon; and (4) that
caused damages to ISL. Palm Beach Roamer, Inc., v. McClure, 727 So.2d
1005, 1007 (Fla. 5th Dist.Ct.App.1999). The only costs incurred by ISL in
reliance on Brough's allegedly fraudulent documents were expenses related to
hiring a lawyer, searching through ISL's records to find evidence of the
contract, and holding a director's meeting to discuss the validity of the
documents. Florida law does not recognize these costs as damages sufficient to
sustain a fraud claim. See Empire Fire & Marine Ins. Co. v. Black, 546 So.2d
732, 732 (Fla.3d Dist.Ct.App.1989) (holding that insured party that was
compensated for injury had "no legally cognizable damage" from the insurer's
misrepresentation even though he was forced to litigate in order to receive
payment).

III. CONCLUSION

33

For the foregoing reasons, we REVERSE the denial of ISL's motion for
judgment as a matter of law on the issue of future commissions totaling
$2,585,000. We AFFIRM the remaining jury awards to Brough of $406,000 for
commission on the sale of the warehouse property and $208,560 for salary,
benefits, and vehicle allowance. We also AFFIRM the grant of judgment as a
matter of law in favor of Golding and Brough on the fraud counterclaims. The
case is REMANDED for proceedings consistent with this opinion.

Notes:
*

Honorable C. Roger Vinson, Chief U.S. District Judge for the Northern District
of Florida, sitting by designation

The dispute between Golding and Levy is the subject of a separate lawsuit in
the Southern District of FloridaSee Golding v. Imperial Sterling, Ltd., Case No.
99-8906-CIV-JORDAN/BANDSTRA.

At the time of the trial, one warehouse property had been sold for $4,060,000

The Florida cases involving the payment of commissions to terminated

employees are not analogous to this one. In each of those cases, all of the
conditions required to earn a commission had been completed prior to the
termination of the employee, and the cases merely stand for the proposition that
the employees were due the commissions they had already earnedSee, e.g.,
Cornell Computer Corp. v. Damion, 530 So.2d 497, 498 (Fla.3d
Dist.Ct.App.1980) (terminated employee who was entitled to commissions
when she placed computer technicians was owed her commissions from
placements she made prior to termination); Linton v. Pension Servs. Corp., 389
So.2d 247, 249-50 (Fla.2d Dist. Ct.App. 1980) (terminated employee was
entitled to commissions on payments received by the corporation which had
been billed at time of employee's termination). In this case, Brough only was
entitled to commissions for "sales, swaps or purchases" of property, none of
which had occurred at the time that ISL repudiated his contract.

Our ruling does not conflict with Florida contract law holding that a party to a
contract who makes impossible a happening of a condition precedent may not
thereby avoid liability on the contractSee Babe, Inc. v. Baby's Formula Serv.
Inc., 165 So.2d 795, 798 (Fla.3d Dist. Ct.App. 1964). That principle only
applies when one party to a contract prevents another party to a contract from
performing their obligations. In this case, the contract did not give Brough the
right to sell property at his whim; it only provided that Brough would receive a
commission if a property was bought, sold or swapped. ISL cannot be held

liable for failing to sell its properties when it had no obligation to do so under
the contract.
5

Due to our disposition of the issue of unearned future commissions, this issue is
relevant only to the jury's award of $208,560 in future salary, benefits and
vehicle allowance

There are several Florida cases that stand for the proposition that a damage
award should be reversed if the award has not been reduced by a present value
calculationSee, e.g., N.E.P. Int'l Inc. v. Falls, 629 So.2d 1019, 1019 (Fla. 4th
Dist.Ct.App. 1993); Vibrant Video, Inc. v. Dixie Pointe Assocs., 567 So.2d
1003, 1004 (Fla.3d Dist. Ct.App. 1990). In those cases, however, the damages
were assessed by the trial court, not a jury, and therefore it was easy to
determine from the trial court's order that a present value calculation was not
made. By contrast, this court has no way of knowing that the jury failed to
make a present value determination, and cannot assume that it did not merely
because the jury's award was the same as the total future damages.

ISL cites several cases in which appellate courts affirmed district court
decisions to exclude evidence from rebuttal that properly belonged in the casein-chiefSee, e.g., Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 21-22 (3d
Cir.1984); Morgan v. Commercial Union Assurance Cos., 606 F.2d 554, 556
(5th Cir.1979); Smith v. Conley, 584 F.2d 844, 846 (8th Cir.1978). These courts
did not indicate, however, that the admission of such evidence would have been
reversible error; they merely said that it was within the discretion of the judge
to admit or deny such evidence.

In light of the fact that the jury found in favor of Brough on the breach of
contract claim, it is clear that they did not believe the contracts were fraudulent
and therefore ISL would not have prevailed even if this issue had gone to the
jury